From Blurred Lines to Clear Lines


On March 21, 2018, the Ninth Circuit kept some lines clear by upholding the district court’s decision finding Robin Thicke and Pharrell William’s song “Blurred Lines” infringed on Marvin Gaye’s song “Got To Give It Up.”

The last time we heard about this case was back in March 2015, when a jury awarded over $5 million in damages and a 50% royalty for the infringement. As with any case, the parties appealed the decision in hopes of a different outcome.

When an appellate court reviews a case that was decided by a jury the standard of review is very high, and the court will affirm the verdict if it is supported by substantial evidence. This basically means that unless the jury really dropped the ball the outcome of the case will remain the same.

The Ninth Circuit reviewed the elements of copyright infringement (i.e. the underlying work has copyright protection and there was copying of the work) and found that jury was correct. First, there was a valid copyright to Gaye’s musical composition, because it was registered with the United States Copyright Office. And second, there was copying because the two works were substantially similar based on both the extrinsic and intrinsic test.

Marvin Gaye

The more you can prove someone has access to the underlying work, the less you have to prove the two works are substantial similar. This rule makes sense, because you cannot copy something you do not have access to, or even know about. Here, Williams and Thicke admitted to having a high degree of access to Gaye’s hit, which lowered the showing of substantial similarity.

This is a highly criticized area of the law because every artist is inspired by other artists, and sometimes creates similar sounding or looking work which leaves them vulnerable to a copyright infringement lawsuit. On the other side of coin is the argument that inspiration is one thing, but copying is another. After all, that’s what licensing deals are for.

The Ninth Circuit also told T.I. to put his wallet away, because it found that he was not personally liable in this case and thus not responsible for paying damages.

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